By Thompson
H.B. No. 1883
A BILL TO BE ENTITLED
AN ACT
relating to durable powers of attorney and statutory durable powers of attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION1. Section 488, Texas Probate Code, is amended to read as follows:
Sec.488.REVOCATION OF DURABLE POWER OF ATTORNEY OR STATUTORY DURABLE POWER OF ATTORNEY. (a) A principal may revoke a statutory durable power of attorney by:
(1)filing notice of the revocation of the statutory durable power of attorney in the office of the county clerk of the county in which the statutory durable power of attorney was recorded; and
(2)giving notice, orally or in writing, of revocation filed under Subdivision (1) of this subsection to the attorney in fact or agent.
(b)On receiving notification of a revocation of a statutory durable power of attorney, the attorney in fact or agent must return to the principal any of the principal's property administered by the attorney in fact or agent in accordance with the statutory durable power of attorney.
(c)Unless otherwise provided by the durable power of attorney, a revocation of a durable power of attorney is not effective as to a third party relying on the power of attorney until the third party receives actual notice of the revocation.
SECTION2. Section 489, Texas Probate Code, is amended to read as follows:
Sec.489.RECORDING DURABLE POWER OF ATTORNEY OR STATUTORY DURABLE POWER OF ATTORNEY; PROHIBITED [FOR REAL PROPERTY] TRANSACTIONS. (a) A statutory durable power of attorney and the statement of the principal required by Section 489A of this code shall be recorded in the county in which the principal resides.
(b)A durable power of attorney for a real property transaction requiring the execution and delivery of an instrument that is to be recorded, including a release, assignment, satisfaction, mortgage, security agreement, deed of trust, encumbrance, deed of conveyance, oil, gas, or other mineral lease, memorandum of a lease, lien, or other claim or right to real property, shall also be recorded in the office of the county clerk of the county in which the property is located.
(c)After execution of a durable power of attorney, the attorney in fact or agent may not engage in a real property transaction or a tangible personal property transaction pursuant to the power of attorney before the 11th day after the date on which the power of attorney is recorded.
SECTION3. Chapter XII, Texas Probate Code, is amended by adding Sections 489A and 489B to read as follows:
Sec.489A.REQUIRED DISCLOSURE STATEMENT FOR STATUTORY DURABLE POWER OF ATTORNEY. (a) A statutory durable power of attorney is not effective unless the principal, on or before executing the statutory durable power of attorney, signs a statement declaring that the principal has received, read, and understood the disclosure statement.
(b)A statement in substantially the form of the disclosure statement contained in the statutory durable power of attorney in Section 490 of this code has the meaning and effect prescribed by Subsection (a) of this section.
Sec.489B.ACCOUNTING RECORDS. (a) The attorney in fact or agent of a principal empowered to act for the principal with regard to a class of transactions under a durable power of attorney or statutory durable power of attorney shall maintain appropriate records of each transaction, including an accounting of receipts and disbursements.
(b)Within the period prescribed by Subsection (c) of this section, the attorney in fact or agent shall make any transaction records available, on request, to the principal or any guardian or other personal representative of the principal's estate, for inspection and review. If the attorney in fact or agent fails to comply with a request made under this subsection, the person making the request may file in a court of proper jurisdiction a petition for an order to enforce the request. After notice and hearing, the court may order the attorney in fact or agent to make the records available to the petitioner for inspection and review.
(c)The attorney in fact or agent shall maintain the records until at least the fourth anniversary of the date the durable power of attorney or statutory durable power of attorney expires or is expressly revoked by the principal.
SECTION4. Section 490, Texas Probate Code, is amended to read as follows:
Sec.490.Statutory Durable Power of Attorney. (a) The following form is known as a "statutory durable power of attorney." A person may use a statutory durable power of attorney to grant an attorney in fact or agent powers with respect to a person's property and financial matters. A power of attorney in substantially the following form has the meaning and effect prescribed by this chapter. The validity of a power of attorney as meeting the requirements of a statutory durable power of attorney is not affected by the fact that [one or more of the categories of optional powers listed in the form are struck or] the form includes specific limitations on or additions to the attorney in fact's or agent's powers.
The following form is not exclusive, and other forms of power of attorney may be used.
STATUTORY DURABLE POWER OF ATTORNEY WITH DISCLOSURE STATEMENT
A. DISCLOSURE STATEMENT: Information Concerning the Statutory
Durable Power of Attorney
THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. You are authorizing the person named as your agent (attorneyinfact) to act with full legal power and authority on your behalf with respect to your property or financial matters without court approval or supervision. The agent (attorneyinfact) may take any action relating to the powers you have initialed on this document. YOU SHOULD NOT APPOINT A PERSON AS YOUR AGENT (ATTORNEYINFACT) UNLESS YOU HAVE COMPLETE TRUST AND CONFIDENCE IN THE PERSON. If, for example, you give your agent (attorneyinfact) the power to handle real property transactions on your behalf, your agent (attorneyinfact) will be able to bind you on all the transactions set out in Section 492, Texas Probate Code, including the sale of your real property. In deciding whether you want your agent to have a particular power, you should read the corresponding statutory provisions (Sections 491504, Texas Probate Code). If you have any questions about this document or a power granted in the document, you should obtain legal advice from an attorney of your choice.
You may wish to designate a successor agent (attorneyinfact) in the event that your agent (attorneyinfact) is unwilling, unable, or ineligible to act as your agent (attorneyinfact). A successor agent (attorneyinfact) designated by you will have the same authority as the agent (attorneyinfact) to make property or financial matter decisions for you.
EVEN AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE PROPERTY OR FINANCIAL MATTER DECISIONS FOR YOURSELF SO LONG AS YOU ARE ABLE TO DO SO.
YOU MAY REVOKE THIS POWER OF ATTORNEY AT ANY TIME IF YOU WISH TO DO SO. To revoke a statutory durable power of attorney, you must file a notice of revocation with the county clerk in the county in which the statutory durable power of attorney is recorded. You must also inform the agent (attorneyinfact) orally or in writing that you are terminating the person's authority under the statutory durable power of attorney. If you are aware of a third party who has transacted business with the agent (attorneyinfact) acting under the statutory durable power of attorney, you should send the third party notice that the agent (attorneyinfact) no longer has authority to act on your behalf under the statutory durable power of attorney.
IF YOU HAVE A QUESTION ABOUT HOW YOUR AGENT (ATTORNEYINFACT) IS HANDLING YOUR PROPERTY OR FINANCIAL MATTERS, YOU ARE ENTITLED TO RECEIVE AN ACCOUNTING FROM THE AGENT (ATTORNEYINFACT). Your right to an accounting is described in this document. You also are entitled to have any property administered by your agent (attorneyinfact) returned to you when you revoke the statutory durable power of attorney or when your agent (attorneyinfact) resigns.
THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR HEALTH CARE DECISIONS FOR YOU. You may authorize an agent (attorneyinfact) to make those types of decisions on your behalf under a medical power of attorney.
Sign below to acknowledge your receipt of this disclosure statement before you sign the statutory durable power of attorney to affirm that YOU HAVE BEEN GIVEN THE OPPORTUNITY TO:
(1)READ THIS DISCLOSURE STATEMENT AND THE ATTACHED STATUTORY POWERS; and
(2)ASK ABOUT THE SCOPE OF ANY POWERS THAT YOU DO NOT FULLY UNDERSTAND.
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Date:______
Principal's Signature
B. APPOINTMENT; GRANTING OF POWERS
[NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTHCARE DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO.]
I, ______(insert your name and address), appoint ______(insert the name and address of the person appointed) as my agent (attorneyinfact) to act for me in any lawful way with respect to all of the following powers that I have initialed [except for a power that I have crossed out below].
TO GRANT ALL OF THE FOLLOWING POWERS, EXCLUDING REAL PROPERTY TRANSACTIONS, INITIAL THE LINE IN FRONT OF (M) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS LISTED IN (A) THROUGH (L).
TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE POWER.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE [YOU MUST CROSS OUT EACH] POWER [WITHHELD]. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
___(A)[Real property transactions;] Tangible personal property transactions;
___(B)Stock and bond transactions;
___(C)Commodity and option transactions;
___(D)Banking and other financial institution transactions;
___(E)Business operating transactions;
___(F)Insurance and annuity transactions;
___(G)Estate, trust, and other beneficiary transactions;
___(H)Claims and litigation;
___(I)Personal and family maintenance;
___(J)Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;
___(K)Retirement plan transactions;
___(L)Tax matters;
___(M)ALL OF THE POWERS LISTED IN (A) THROUGH (L). YOU DO NOT HAVE TO INITIAL THE LINES IN FRONT OF ANY OTHER POWER THAT DOES NOT INVOLVE REAL PROPERTY TRANSACTIONS IF YOU INITIAL LINE (M).
TO GRANT A POWER INVOLVING REAL PROPERTY TRANSACTIONS, INITIAL THE LINE IN FRONT OF ONE OF THE FOLLOWING POWERS. TO GRANT A POWER INVOLVING YOUR HOMESTEAD, INITIAL THE LINE IN FRONT OF (N).
___(N)All real property transactions, including transactions involving your homestead;
___(O)Any real property transactions under $50,000, excluding your homestead;
___(P)All real property transactions, excluding your homestead.
[IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I WERE PERSONALLY PRESENT.]
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of the following sentence to have it apply):
I grant my agent (attorney in fact) the power to apply my property to make gifts, except that the amount of a gift to an individual may not exceed the amount of annual exclusions allowed from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT (ATTORNEYINFACT).
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UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE ALTERNATIVE NOT CHOSEN:
(A)This power of attorney is not affected by my subsequent disability or incapacity.
(B)This power of attorney becomes effective upon my disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT YOU CHOSE ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my disability or incapacity is not contained in this power of attorney, I shall be considered disabled or incapacitated for purposes of this power of attorney if a physician certifies in writing at a date later than the date this power of attorney is executed that, based on the physician's medical examination of me, I am mentally incapable of managing my financial affairs. I authorize the physician who examines me for this purpose to disclose my physical or mental condition to another person for purposes of this power of attorney. A third party who accepts this power of attorney is fully protected from any action taken under this power of attorney that is based on the determination made by a physician of my disability or incapacity.
I agree that any third party who receives a copy of this document may act under it. Revocation of the durable power of attorney is not effective as to a third party until the third party receives actual notice of the revocation. I agree to indemnify the third party for any claims that arise against the third party because of reliance on this power of attorney.
I shall record this power of attorney and the disclosure statement in ______County. I may revoke this power of attorney by recording a notice of revocation in the office of the county clerk in the same county in which the power of attorney is recorded and by giving my agent (attorneyinfact) written or oral notice of the revocation.
If any agent named by me dies, becomes legally disabled, resigns, or refuses to act, I name the following (each to act alone and successively, in the order named)as successor(s)to that agent: ______.
Signed this ______day of ______, 20 [19]___
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(your signature)
______
(signature of witness)
YOU MAY REQUEST YOUR AGENT (ATTORNEYINFACT) OR SUCCESSOR AGENT (ATTORNEYINFACT) TO PROVIDE A SAMPLE SIGNATURE ON THE LINE BELOW. IF YOUR AGENT (ATTORNEYINFACT) OR SUCCESSOR AGENT (ATTORNEYINFACT) PROVIDES A SAMPLE SIGNATURE, YOU MUST SIGN THE CERTIFICATION TO THE RIGHT OF THE AGENT'S (ATTORNEYINFACT'S) SIGNATURE.
Sample signature of agent I certify that the signature
or successor agent to the left of my signature is
that of my agent or successor
agent
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(agent) (principal)
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(successor agent) (principal)
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(successor agent) (principal)
THIS POWER OF ATTORNEY IS NOT EFFECTIVE UNLESS IT IS NOTARIZED AND SIGNED BY AT LEAST ONE WITNESS WHO IS NOT THE PRINCIPAL, THE AGENT (ATTORNEYINFACT), SUCCESSOR AGENT (ATTORNEYINFACT), OR NOTARY AND THE DISCLOSURE STATEMENT IS SIGNED BY THE PRINCIPAL.
State of ______
County of ______
Before me, the undersigned authority, on this day personally appeared ______(insert name of principal) and ______(insert name of witness), known to me to be the principal and witness, respectively, of this power of attorney. The principal of this power of attorney declared to me that the execution of this power of attorney is the free and voluntary act of the principal and that the principal is of sound mind. The undersigned witness stated to me that the principal of this power of attorney declared to me that the execution of this power of attorney is the free and voluntary act of the principal and that the principal is of sound mind.
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Principal
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Witness
Subscribed and sworn to before me by ______, principal, and by ______, witness, this ______day of ______, 20____
(SEAL)
______
(signature of notarial officer)
______
(printed name)
My commission expires:______[This document was acknowledged before me on
[______(date) by ______
[(name of principal)
[______
[(signature of notarial officer)
[(Seal, if any, of notary) ______
[(printed name)
[My commission expires:______]
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT AND IS RESPONSIBLE FOR MAINTAINING APPROPRIATE RECORDS OF EACH TRANSACTION, INCLUDING AN ACCOUNTING OF RECEIPTS AND DISBURSEMENTS, UNTIL THE FOURTH ANNIVERSARY OF THE DATE THIS POWER OF ATTORNEY EXPIRES OR IS EXPRESSLY REVOKED BY THE PRINCIPAL. AS A FIDUCIARY, AN ATTORNEYINFACT OR AGENT IS HELD TO THE HIGHEST STANDARDS OF GOOD FAITH, FAIR DEALING, AND LOYALTY WITH RESPECT TO THE PRINCIPAL. FAILURE TO ADHERE TO THESE STANDARDS MAY SUBJECT AN ATTORNEYINFACT OR AGENT TO LEGAL ACTION. DEPENDING ON THE DEGREE OF MISCONDUCT, AN ATTORNEYINFACT OR AGENT MAY BE LIABLE FOR DAMAGES OR MAY BE CHARGED WITH A CRIMINAL OFFENSE.
(b)A statutory durable power of attorney is legally sufficient under this chapter if the wording of the form complies substantially with Subsection (a)of this section, the form is properly completed, and the signature of the principal is acknowledged.
(c)If a principal initials the line in front of (M) in a statutory durable power of attorney, initials in front of another power listed in (A) through (L) of the power of attorney do not limit the powers granted by (M).
SECTION5. This Act takes effect September 1, 2001, and the changes in law made by this Act apply only to a durable power of attorney or statutory durable power of attorney that is executed on or after that date. A durable power of attorney or statutory durable power of attorney that is executed before the effective date of this Act is governed by the law in effect on the date the power of attorney was executed, and that law is continued in effect for that purpose.